Last year, we discussed on this blog, the case of an excavation contractor who was facing criminal negligence causing death and manslaughter charges in relation with the accidental death of one of his employees. Since then, that contractor has been found guilty on both charges[1], and on September 18, 2018, he was sentenced to 18 months in prison[2].

It is worth briefly reviewing the underlying facts of this case. On April 3, 2012, the contractor and an employee were replacing a sewer line when the walls of the trench collapsed killing the employee instantly. The evidence adduced at the preliminary inquiry tended to demonstrate that such accident took place because the contractor let his employee perform the work without taking the mandatory security measures required by the applicable health and safety regulations and, as a result, the contractor was personally charged with criminal negligence causing death and manslaughter.

The trial took place from November 27 to December 15, 2017. According to the contractor’s defense, the trench walls collapsed a first time while the employee was installing the shoring systems in the trench, burying the employee’s legs. A few minutes later, while the contractor was trying to free the employee, a second wall collapsed, burying the contractor up to the knees and fully submerging the employee’s body.

The court rejected this version of the events and rather accepted the Crown’s theory that the trench walls only collapsed once, while both the contractor and his employee were in the trench without any shoring systems being installed. Both the firefighters and the investigators from the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST” – Quebec’s workplace health and safety board) who were on scene shortly after the accident, stated that the workplace presented an enormous hazard for the trench walls to collapse. More specifically, the investigators of the CNESST, as well as the Crown’s experts, noted that there were numerous violations of health and safety regulations and dangerous conditions on the work site.

The judge found that the Crown had proven, beyond a reasonable doubt, all the essential elements of the offence of manslaughter:

The contractor’s conduct constituted an illegal act. As the employee’s employer, the contractor had the obligation to ensure that the trench walls were secured in accordance with the requirements of section 3.15.3 of the Safety Code for the Construction Industry before sending him into the trench, which he failed to do.

The contractor’s conduct caused the death of a human being. The employee’s death was the result of the contractor’s failure to comply with the requirements of the Safety Code for the Construction Industry.

The illegal act was objectively dangerous. The Superior Court already answered this question in the affirmative when it confirmed the contractor’s committal to trial for the charge of manslaughter.

The contractor’s conduct significantly departed from the conduct of a reasonable person placed in the same circumstances (criteria applicable when the illegal act is a strict liability offence). The Court also answered this question in the affirmative, underlining the fact that even the firefighters refused to go in the trench without a proper shoring system being installed and that both the inspectors and the Crown’s experts agreed that the workplace was extremely hazardous.

A reasonable person would have foreseen the risk of bodily harm. According to the court, it was very foreseeable given all the circumstances of the case.

The judge also found that the Crown had proven, beyond a reasonable doubt, all the essential elements of the offence of criminal negligence causing death:

The contractor had the legal obligation to do or not to do something. Pursuant to section 217.1 of the Criminal Code, the contractor was under a legal duty to take all reasonable steps to prevent bodily harm to the employee whose work he had the authority to direct.

This act or omission caused the death of a human being. As previously established, the court determined that the employee’s death was caused by the contractor’s conduct.

The contractor’s conduct displayed a wanton or reckless disregard for the lives or safety of other persons. The Court noted that the contractor’s conduct displayed a total lack of consideration for its foreseeable consequences concerning the employee’s safety.

The contractor’s conduct significantly departed from the conduct of a reasonable person placed in the same circumstances. As previously established, the Court determined that the question should be answered in the affirmative.

However, it should be noted that because of the rule against multiple convictions for the same offence, a conditional stay of proceedings was ordered with respect to this charge of criminal negligence causing death.

The parties were back in Court this September for sentencing. The Crown requested a 3-year jail sentence while the defense argued for a sentence of 90 days to be served intermittently along with a 3-year probation, including 240 hours of community services, and a $5,000.00 fine.

The court stated that the sentence shall not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In addition, it is possible and appropriate to consider the objectives of denunciation and general deterrence. The Court considered that the mere possibility of imprisonment would act as a much larger deterrent than the overall length of the sentence.

With these considerations in mind, and considering the aggravating factors (including that the contractor had previous convictions for health and safety violations) and mitigating factors of the file, the Court found it was appropriate to impose an 18-month jail sentence on the contractor.

One thing is certain, by imposing prison time on this contractor, which is a first in Quebec legal history, the Court of Quebec certainly wanted to send a clear message to all employers concerning the importance of complying with their occupational health and safety obligations. Employers, and supervisors, are at risk of both provincial health and safety charges and criminal negligence and manslaughter charges. We invite you to consult with our team of legal experts for any question you might have concerning your health and safety obligations.

In the recent decision Fournier c R.[1], the Superior Court of Quebec confirmed that an employer’s violations of health and safety legislation can be the underlying unlawful act on which is based a criminal charge of manslaughter.

On April 3, 2012, Mr. Fournier, who is the owner of an excavation firm, was replacing a sewer line with one of his employees when the trench walls collapsed, killing the employee. As a result, Mr. Fournier was personally charged with criminal negligence causing death[2] and with manslaughter. For both offences, the maximum punishment is imprisonment for life.

Following the preliminary inquiry, the accused was committed to trial on both charges. While he did not contest the part of the decision relating to the offence of criminal negligence causing death, he challenged his committal to trial for the charge of manslaughter.

In this case, the charge of manslaughter is based on section 222(5)a) of the Criminal Code which provides that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. At the preliminary inquiry hearing, the prosecution led evidence to show that while he was in charge of the work to replace the sewer line, Mr. Fournier did not solidly shore the banks of the trench with quality material in accordance with the plans and specifications of an engineer as required by section 3.15.3 of the Safety Code for the construction industry (the “Safety Code”). According to section 236 of An Act respecting occupational health and safety (the “Act”), the failure to fulfill this obligation is a strict liability offence. The judge presiding at the preliminary inquiry accepted the Crown’s argument that this failure could constitute the underlying “unlawful act” referred to in section 222(5)a) of the Criminal Code.

Mr. Fournier challenged this decision by way of judicial review, arguing that a strict liability offence cannot constitute an “unlawful act” as per section 222(5)a) of the Criminal Code.

The Superior Court refused Mr. Fournier’s argument and rather concluded, following a thorough review of the relevant case law and doctrine, that the underlying unlawful act in a charge of manslaughter can be a strict liability offence, including one related to occupational health and safety.

It clarified, however, that in such circumstances, and unlike a typical prosecution under occupational health and safety legislation, it is not the accused who bears the burden to prove that he has taken all the reasonable steps in the circumstances to avoid or prevent the occurrence of the prohibited act. Rather, it is for the Crown to prove, beyond a reasonable doubt, that the conduct of the accused constitutes a marked departure from that of a reasonable person. More specifically, to satisfy its burden of proof, the prosecution must establish all of the following elements:

The accused committed a strict liability offence which was objectively dangerous;

The conduct of the accused constituted a marked departure from the standard of a reasonable person in the same circumstances; and

Taking in consideration all the circumstances of the case, a reasonable person would have foreseen the risk of bodily harm.

In application of the above-mentioned principles, the Superior Court found that there was sufficient evidence in this case to confirm the committal to trial. According to the judgment, the Crown offered prima facie evidence for each of the three criteria: 1) the failure to solidly shore the banks of a trench is a strict liability offence according to the Act and the Safety Code and is also objectively dangerous conduct; 2) the breach of this obligation is a marked departure from the standard of a reasonable person in the same circumstances; and 3) a reasonable person would have foreseen the risk of not solidly shoring the banks of the trench.

In conclusion, this decision should bring to the employers’ minds the very serious consequences that failure to comply with occupational health and safety obligations can have on their employees, but also on their own life. From now on, employers must be aware that if an employee dies in such context, not only can they be charged with criminal negligence, but also with manslaughter.

[2] The charge of criminal negligence causing death is based on section 219 of the Criminal Code on the alleged failure of Mr. Fournier to respect the obligation set out in article 217.1 of the Criminal Code, which provides that “everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.” This provision of the Criminal Code has been in force since 2004, but has not been invoked in many prosecutions so far.

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